RECENT DEVELOPMENT: What Does "Lawfully Entitled To Be Present and Employed" Mean To You?: Undocumented Workers & Make-Whole Remedies Under the NLRA Skip over navigation
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Copyright (c) 2000 University of Hawai'i Law Review
University of Hawai'i Law Review

RECENT DEVELOPMENT: What Does "Lawfully Entitled To Be Present and Employed" Mean To You?: Undocumented Workers & Make-Whole Remedies Under the NLRA

Summer, 2000

22 Hawaii L. Rev. 737

Author

John R. McIntyre 189

Excerpt

I. INTRODUCTION

Philip is an alien who lacks documentation to work in the United States. The manager of Acme Industries knows that Philip is undocumented, but hires him anyway. Two years later, Philip's employment is terminated; the National Labor Relations Board ("the Board" or "NLRB") determines that he was illegally fired because of his support for a union organizing drive. 1 The usual remedy for this sort of discriminatory discharge is reinstatement of the employee to his job, coupled with backpay for the employee. 2 Should Philip's status as an undocumented worker prevent him from receiving this remedy? 3 When the United States Supreme Court decided Sure-Tan v. NLRB 4 in 1984, it indicated that illegally dismissed undocumented workers such as Philip might not be eligible for reinstatement and backpay under the National Labor Relations Act 5 ("NLRA" or "the Act"). 6 Since that time the impact of Sure-Tan on the remedies available to undocumented workers has been interpreted in different ways by the various U.S. Courts of Appeals. 7 The 1986 passage of the Immigration Reform and Control Act 8 ("IRCA") further obscured the holding of Sure-Tan by criminalizing the employment of undocumented workers. 9 In the last two years, however, the NLRB has clearly adopted a construction of Sure-Tan which generally permits the conditional awarding of backpay and reinstatement to undocumented discriminatees. 10 The Board's position, while based on a rather broad reading of Sure-Tan, better effectuates national industrial policy than an ...
 
 
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